Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 560 - 579)



Sir Patrick Cormack

  560. I have not finally made up my mind and it would be very wrong to do so until the Committee has heard all the evidence and deliberated. The direction in which I am moving is this, that Parliament should remain in charge of its own affairs, of its Members, but that if there is a case which is manifestly so serious, the damage done so great, and the issue so complex, that Parliament should in that instance specifically and absolutely waive privilege in respect of that particular Member and hand him or her over to the civil authorities, then that should be done, but, to use the awful jargon, on a one-off basis rather than by a general waiver of privilege. That is the direction in which I am moving at the moment.

  A. Well, Sir Patrick, if you say that Parliament should decide, I agree with you, but the matter would have to be raised in Parliament as a matter of privilege and the Privileges Committee would have to decide. I would be absolutely in favour of Parliament deciding. I would not want that responsibility put upon the Speaker.

  561. No, I am not suggesting for a minute that it should fall on the Speaker, but whether there should be a panel of senior Privy Councillors who advise the Privileges Committee is another issue and is something we should possibly consider. I do think that it should be the House that makes the decision in a specific instance and not the Member who tries to waive it, as we had that bad example of monkeying around with the law on defamation a couple of years ago. It should be the House that decides that here is a case that is too complex and too serious and therefore we are handing it over to the civil authorities.

  A. The House must always be sovereign and if the House so decides then that is it.


  562. As you understand it, would the House have power to waive its privilege under Article 9?

  A. The House has power to do anything. The House was asked to waive its privilege, was it not, in the case of Hamilton?

Sir Patrick Cormack

  563. Yes. That was the bad example I referred to because he got a change in the law.

  A. I have to say that I voted against it in the House of Lords because it was my view that no Member really has a right to waive his individual privilege. It is a matter for the House to decide. In that particular case, although Mr Hamilton decided he wished to waive his privilege, I think others who were involved decided they did not.

Lord Archer of Sandwell

  564. If the House were to have to consider whether to waive its privilege in a particular case of that kind and therefore leave the matter to the courts, could that be done without a full scale debate? I follow that you would refer it to the Committee of Privileges or something of that sort, but if it were highly emotive and there was likely to be a full scale debate, would that make it very difficult then for the courts to consider this case objectively?

  A. I think it would have to be subject to a debate. The Committee of Privileges has no right to circumvent Parliament and there would be cries of "point of order" on the floor. In a hypothetical case no doubt a Member would have some friends who would wish to stick up for him and demand that natural justice was seen to be done. There have been a number of other cases which have really caused me concern, not least the John Browne case. You will remember that. At that time there was hardly a lawyer on either side of the House who did not come knocking on my door at the Speaker's house saying, "This is unfair, Mr Speaker. This man is not able to send for witnesses or question anybody. It is a kangaroo court. It is unfair and you have got to stop it, sir." I had no power to stop it at all, but our system is that it went to the Committee and the Committee decided. Unfair or not, I had to say, "This is our procedure." I do not think that the Committee could decide the thing without coming back to the House. It would mean a debate and it would create problems.

Mr Michie

  565. Are we not likely to get ourselves into a bigger mess in the sense that if there is a debate in the House of Commons the friends of the Member concerned will all be beating their chests and making the point and debating the issue that it is going to go before the court in the full glare of publicity, television, etc. If it was decided that way, the courts could be in a mess because it has already been in the papers and all over the television. That is probably a worse state of affairs than it is at the moment.

  A. I think that is absolutely right. These are very difficult questions that your Committee has to resolve.

Sir Patrick Cormack

  566. But there is no tidy solution, is there, because if we maintain the status quo, if things carry on as they are, every report of the Committee has to be debated in the House, and if we move in the direction which the Home Secretary would appear to wish us to move, then we waive our privilege completely and the implications of that, Members being subpoenaed to give evidence and so on, are fairly considerable, and certainly no tidy solution. If we move in the direction that I think I will advocate, I accept that it is not perfect but I just feel it preserves the privileges of the House better and at the same time acknowledges the public disquiet rather more satisfactorily than maintenance of the status quo or adoption of what the Home Secretary would have us do. Do you think that is a fair position?

  A. It is a compromise, Sir Patrick, but I think it is a better solution than, effectively, trial by Parliament on the television and then going to the courts. The whole thing would be prejudiced, it seems to me, so that would be manifestly unfair.

Lord Waddington

  567. I am not sure, with the greatest respect to Sir Patrick, you have understood what he is suggesting. As I understand it, Sir Patrick is suggesting that in a particular case, a very grave case, the matter would be aired on the floor of the House; there would be a motion down that, in that particular case, the man should be handed over to the civil authorities. Mr Michie has pointed out all the dangers of that proceeding because, in fact, you would not have a fair trial at all, in that there would have already been a trial on the floor of the House on the debate on the motion before the man was handed over to the civil authorities. You mentioned earlier, Lord Weatherill, that we are living in a more open society. You would be the first to acknowledge that there was real public concern about certain goings-on in the last Parliament. Is not, in fact, the only sensible and tidy solution to say that, when somebody offers a bribe and somebody accepts a bribe, then both the offeror of the bribe and the acceptor of the bribe should be tried by the ordinary courts of the land? There is only one alternative to that (and it is a perfectly tidy solution) which is that both the offeror of the bribe and the acceptor of the bribe should be tried by Parliament. Would you like that, and what powers of punishment would then be in the hands of Parliament to satisfy the public? Would Parliament be able to send down the offeror of the bribe for the three or four years which he would richly deserve?

  A. We have already, have we not, agreed that Members of Parliament should be subject to the same laws that we pass. I feel that very strongly and I would not be happy with a double trial—which is effectively what this is. So, in that hypothetical case (which I hope never ever will arise) if somebody had offered a bribe and somebody had taken it, manifestly there is a good case for trying that once in the criminal court but, of course, that means then that evidence has to be taken from others here in Parliament and from the chief whip: "What did you know about it?", and all that. It is an extremely difficult decision to make. Nevertheless I suppose, in that hypothetical case, it is only right and also I think fair to the Member concerned if he is only tried once.

Sir Patrick Cormack

  568. I am sorry but we are getting into difficulties here. I cannot accept that we waive the Parliamentary stage entirely. If it is very easy to accuse a public figure of all manner of things—and it is very easy to accuse a Member of Parliament of all manner of things. There are malicious people out there who will do that, and, without wanting to be too particular, some of the wild allegations made by a certain well-known individual in recent weeks (of which I know not the truth) illustrate the point I am making—if any accusation is made against a Member of Parliament, whoever that Member may be, it is incumbent upon the authorities of the House at least to look at that in a preliminary manner at the very least. Take the case of Mr Hamilton recently. The Standards and Privileges Committee came to the conclusion that, had Mr Hamilton remained a Member of Parliament, the offences of which they judged him guilty were not sufficient to merit his expulsion from Parliament but they would have merited a fairly severe suspension. That is what they said. Therefore, if they had not merited his expulsion, it is very unlikely they would have merited his trial before a jury. I do think it is important that there has to be this preliminary look at things by the authorities of the House and only if the case is very complex and there are accusations of profound seriousness should it be handed over for ultimate trial in the courts. Of course, there is an element of untidiness in this solution—as in any other. There is an element of double trial, if you like. There has to be but then, by being a Member of Parliament, you are putting yourself into a special position and you have to accept that there are, in general terms, some privileges and some drawbacks that go with that position.

  A. Yes.

  569. This is one of them.

  A. I have to say to the Committee that these are questions put to me as a non-lawyer and as an individual, not as a former Speaker really, because I do not think I have any responsibility for that as a former Speaker. Could I just be reminded of what actually happened in the Greenway case because it was alleged that he had raised a Parliamentary question as a result of having accepted some form of bribe and that went to the criminal courts: it was not tried by Parliament.

Lord Archer of Sandwell

  570. He was tried and acquitted.

  A. But in the hypothetical case that Lord Waddington has put, would not the same rules have applied?

   Lord Archer of Sandwell: Yes.


  571. It was tried on the basis that the judge took the view that it did not involve proceedings in Parliament as such, and the case then collapsed on some other ground.

  A. But does not that then more or less answer the question?

  Chairman: It goes some way, perhaps. We are in some danger of putting our own internal arguments in front of you, Lord Weatherill.

Mr Williams

  572. The only thought that occurs to me in relation to this matter is this: we have been over the trigger argument on several occasions, but a lot surely depends on the nature of the motion that is put before the House of Commons. If we had a set of criteria (which is implicit in what you are saying, Sir Patrick) by which we determine whether or not the Commons was competent to deal with a case—for instance on the question of complexity, etc, and some of the things that have been referred to—the debate would not be on the offence itself but on whether the allegation produced a case that met the criteria. This would enable the Chairman to limit the debate; it would confine Members of Parliament in what they would be allowed to say, and it might be a procedural way through this.

  A. It might well be a procedural way through it.

  Sir Patrick Cormack: I think that is right.


  573. I think we ought to move off this area of questioning now. Can I ask you two questions before we do: first of all, is there (as has sometimes been suggested) a danger that, if Parliament embarks on a preliminary inquiry of this sort, it may appear at least to be governed by party political considerations?

  A. In a highly party political atmosphere the answer to that is quite likely "Yes", although I think I may qualify it by saying that the collective wisdom of Parliament is very great. I have always found that the collective wisdom of Parliament would override party political considerations in general. I really do think that.

  574. Secondly, what, if anything, would you suggest or recommend we do about the Defamation Act and amendment of the Bill of Rights?

  A. Could you just expose it a little more for me? "Defamation" in what context?

  575. It is section 13 which gave a Member the right to waive his privilege.

  A. What was the case?

  Chairman: The Hamilton case.

Sir Patrick Cormack

  576. This is the waiver to which you referred when Hamilton persuaded the House (much against the better judgment of many people, I suspect, but nevertheless the House so voted) to amend the defamation legislation going through at that time.

  A. Have I not dealt with that?

  577. Yes, you have, I think.

  A. My feeling was that that was not a good decision. I do not think that an individual Member has any right to amend legislation for his own benefit or what he judges to be his own benefit. That is entirely a matter for the House and should not have been taken. I noted with very considerable interest (because I followed the debate in the House of Lords) that, although the amendment was proposed in the House of Lords by one of the Law Lords, when the vote was taken he abstained.


  578. Were there other issues concerning the privileges of the House that caused you concern or difficulty during your period of Speaker which it would be helpful for us to know about?

  A. Anything, Lord Chairman, that touched upon individual Members of Parliament was of major concern to me. I have already mentioned the John Browne case but there were others because, of course, what happens in practice is that Members of Parliament have a right of access to the Speaker to discuss any matter of concern to them. It is one of the great myths that the Speaker's job is a lonely one. I have to say I think it was fairly well known to my colleagues that I dispensed love and whisky after ten o'clock and I was very busy. People came up after ten o'clock to discuss their personal problems and sometimes their family problems. That is why Speakers should never, ever write their memoirs—they are recipients of far too many confidences. But the Browne case did cause me concern because it appeared to me, in terms of natural justice, to be manifestly unfair. On the other hand, the system is that he was judged by his peers and was so judged: I had to explain that to him.

  579. Do you think the House of Commons is too sensitive of its privileges?

  A. It must not be too sensitive of its privileges, I think, in this modern age. It would not be to the credit of Parliament if cases arose whereby Members of Parliament were not subject to the same laws as the members of public for whom we pass the laws. We must keep them. The privilege of freedom of speech seems to me absolutely sacrosanct because the privilege of speaking in Parliament also reflects, of course, the privilege of speech that a constituent has to his Member. He raises matters on his or her behalf.

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Prepared 9 April 1999